County Superior Court (P1-2011-3317A)
Plaintiff: Christopher Swiridowsky; Kenneth C. Vale, Esq.
Defendant: Daniel Guglielmo, Esq.
the early morning hours of October 28, 2007, the complainant
was walking home from downtown Providence after working in a
restaurant and meeting with some friends. As she neared her
apartment, a car approached and the driver asked if she
needed a ride. She alleges that Christopher Swiridowsky
forced her into the car, took out a gun, raped her, leaving
her naked and grabbing for her clothes on the street. At
trial, Mr. Swiridowsky testified that the events were
consensual, and that he traded drugs for sex.
she reached her home, the police were promptly contacted and
within two hours the complainant was at the Women and Infants
Hospital for an extensive examination. She did not know the
man's name, but four years later when Mr. Swiridowsky was
held for another crime, a DNA match identified him as the
alleged rapist. Mr. Swiridowsky was indicted on one count of
kidnapping, three counts of first degree sexual assault and
one count of assault with the intent to commit a sexual
assault. After a five day trial in July 2013, a Providence
County jury convicted Mr. Swiridowsky on all counts except
for the kidnapping.
November 18, 2015, Mr. Swiridowsky filed a petition for
post-conviction relief. The case was tried over many days
from September 2016 through October 2017, without a jury. Mr.
Swiridowsky elected to represent himself. Post-trial
statements and memoranda were submitted.
Swiridowsky's complaints are multi-faceted, but parsing
his closing arguments, Mr. Swiridowsky focuses on his
allegation that his attorney failed to represent him
to G.L. 1956 §§ 10-9.1-1 et seq.,
'"post-conviction relief is available to a defendant
convicted of a crime who contends that his original
conviction or sentence violated rights that the state or
federal constitutions secured to him."' Torres
v. State, 19 A.3d 71, 77 (R.I. 2011) (quoting Otero
v. State, 996 A.2d 667, 670 (R.I. 2010)). The applicant
for postconviction relief bears '"the burden of
proving, by a preponderance of the evidence, that
postconviction relief is warranted."' Page v.
State, 995 A.2d 934, 942 (R.I. 2010) (quoting
Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007)).
landmark case of Strickland v. Washington, 466 U.S.
668 (1984) established the standard for ineffective
assistance of counsel. Our Supreme Court has repeatedly
adopted the Strickland rationale. See, e.g., LaChappelle
v. State, 686 A.2d 924, 926 (R.I. 1996). The applicant
"is saddled with a heavy burden, in that there exists a
strong presumption that an attorney's performance falls
within the range of reasonable professional assistance and
sound strategy." Rice v. State, 38 A.3d 9, 17
(R.I. 2012), internal citations omitted.
Strickland claim presents a two-part analysis. First, the
petitioner must demonstrate that counsel's performance
was deficient. That test requires a showing that counsel made
errors that were so serious that the attorney was "not
functioning as the 'counsel' guaranteed the defendant
by the Sixth Amendment." Strickland, 466 U.S.
at 687; Powers v. State, 734 A.2d 508, 521 (R.I.
1999). "[A] strong, (albeit rebuttable) presumption
exists that counsel's performance was competent."
Gonder v. State, 935 A.2d 82, 86 (R.I. 2007). Hence,
"[t]his prong can be satisfied only by a showing that
counsel's representation fell below an objective standard
of reasonableness." Chapdelaine v. State, 32
A.3d 937, 941 (R.I. 2011), internal quotations omitted.
counsel's performance is found to be deficient, the
petitioner must still clear a second hurdle in the
Strickland analysis: He must then demonstrate that
his attorney's shortcomings "prejudiced" his
defense. Strickland, 466 U.S. at 687. This prong is
satisfied only when an applicant demonstrates "that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. As Justice O'Connor wrote:
"Thus, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct. A convicted defendant making a
claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment. The court must
then determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range
of professionally competent assistance. In making that
determination, the court should keep in mind that
counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing
process work in the particular case. At the same time, the
court should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
"These standards require no special amplification in
order to define counsel's duty to investigate, the duty
at issue in this case. As the Court of Appeals concluded,
strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation." Strickland, 466
U.S. at 690-91.
applicant must overcome both Strickland steps in
order to mount a successful ineffectiveness claim. Hazard
v. State, 968 A.2d 886, 892 (R.I. 2009). ("[T]he
applicant's failure to satisfy either prong will result
in the denial of the claim of ineffective assistance of
Swiridowsky made a variety of different arguments-all to
suggest that he should be granted post-conviction relief.
These were raised in a variety of hearings that were held
over the course of a year, often leaving the Court and the
State to query which issue was being raised. Therefore, the
Court will address all of the arguments in turn in the order
in which Mr. Swiridowsky discussed them in his final
Mr. Swiridowsky claims that the bruises on the victim were
incurred prior to the night of the molestation, and that his
counsel was ineffective for failing to hire an expert witness
on bruising. Rather than presenting expert evidence,
plaintiff references an article (Sophie E. Grossman, A.
Johnston, P. Vanezis and D. Perrett, Can we assess the
age of bruises? An attempt to develop an objective
technique, Medicine, Science and the Law 170 (2011)
(Pl.'s Ex. A). Mr. Swiridowsky failed to obtain an expert
witness's testimony, and no expert testimony was admitted
at the trial or the post-conviction hearing. Several of the
comments in the article seem to disprove Mr.
• "Many studies have been carried out investigating
the ability of forensic or medical experts to accurately
assess the age of a bruise visually, but the consensus is
that this is a highly inaccurate method and should therefore
not be relied upon in court." Ex. A at 170.
• [After photos were enhanced by Adobe Photoshop CS4]
"the individual trend for each bruise over time was
highly variable and there was found to be no relationship
between the change in RGB [red, green and blue] value and the
age of the bruise." Id. at 174.
• "In conclusion, these studies have confirmed the
unreliability of expert visual assessment of bruise age, and
that RGB analysis of JPEG images corrected for colour balance
did not assist with determining the age of bruises. However,
the possibility for objective assessment of colour for the
purpose of ageing bruises has not been completely rejected
owing to the comparable changes in bruise colour seen within
subjects." Id. at 176.
Mr. Swiridowsky claimed in his final argument:
"The images of green and yellow bruises on [the
victim's] body are images indicative of injuries
sustained at least 18 hours prior to evidence collection.
This position is now supported by scientific documents
finally submitted in these post-conviction proceedings by
myself and the State on file as Plaintiffs Exhibit 1,
State's Exhibit A, documents [my trial counsel] failed to
provide my jury with in 2013 . . ." Tr. 10, Oct. 5,
medical article which Mr. Swiridowsky submitted to the Court
establishes that the claim Mr. Swiridowsky made during his
final argument cannot be scientifically established.
Corrado, the sexual assault nurse examiner at Women and
Infants Hospital who examined the victim, testified regarding
the bruises on the morning of the incident. She was never
asked, and did not opine on the age of the bruises. She
testified that she observed bruising, took photos (Tr. 176,
179, July 17, 2013), measured them (Id. at 182), and
asked the victim about them (Id. at 177). Nurse
Corrado concluded "everybody is different, and bruising
can show up at different periods" which varies from
person to person. Id. at 185:16-17. When examined on
cross about the age of a bruise, she repeated "I'm
not an expert in bruising. Everybody is different."
Id. at 211. Her testimony was consistent with the
post-conviction trial, counsel testified that he reviewed
copies of the photographs with Mr. Swiridowsky pretrial, and
reviewed the color photos with Mr. Swiridowsky at the trial,
and does not recall the defendant requesting an expert for
the bruises (untranscribed testimony, May 10, 2017). While
trial counsel may have attempted to offer an article from the
internet, pressing for introduction of an unauthenticated
document would have been challenging. Extracting an expert
opinion without an expert would have been impossible.
Further, it disproves his client's
Swiridowsky then notes his counsel's failure to object to
the photos at trial. Ms. Corrado, the sexual assault nurse
examiner, testified the bruises were red and purple on the
morning of the incident. (Id. at 182-85). The photos
were faded at trial (Id. at 182, 184). Counsel
tactically decided not to question the admission of the
hospital records, which were likely to come in at some point.
Trial counsel effectively cross-examined the nurse on the age
of the bruising (getting Ms. Corrado to acknowledge that the
bruises appeared yellow, red and brown at trial)
(Id. at 210) and reminded the jury of the issue at
closing. Counsel performed competently on this issue.
Swiridowsky was paying his attorney's bill directly at
the time (having released a public defender), and never
informed the Court of any financial need or need for an
expert until days before trial. Mr. Swiridowsky fails to
reference any other case demonstrating that bruises can be
aged by their color. As the limited efficacy of an expert for
bruising has already been discussed, the Court need not delve
into the issue of there being no money to pay an expert.
Swiridowsky suggests his trial attorney failed to locate
witnesses, and failed to ask for a continuance to locate
them. While the record may show no requests for continuance,
counsel clearly indicated his precarious situation to the
Court. When the case was reached for trial in July 2013, Mr.
Swiridowsky had stopped paying his attorney and had
previously refused the assistance of the Public Defender. Mr.
Swiridowsky continued to assure his trial attorney that
payment would be made. On the eve of empanelment, the Court
refused counsel's request to withdraw but reserved its
ruling on compensating counsel as a court-appointed attorney.
(Tr. 7, July 3, 2013). In sum, the defense attorney was limited
in resources because of Mr. Swiridowsky's actions.
the trial, Charles Galligan, a private investigator, was able
to locate several witnesses for Mr. Swiridowsky over several
months after he was compensated by Mr. Swiridowsky. Although
some were located, it is unclear what Mr. Swiridowsky could